On Point: 1. Appeals

Holguin-Hernadez v. United States, USSC 18-7739, vacating and remanding a per curiam 5th Circuit Court of Appeals opinion;  SCOTUSblog page (includes links to briefs and commentary).

At Holguin-Hernandez’s revocation hearing, his counsel argued for a specific sentence–either nothing or less than 12 months. The government pushed for 12-18 months. After the district court chose 12 months, H-H appealed and argued that the length of his sentence was unreasonable.

State v. Lance L. Black, 2019AP592, 3/3/20, District 1 (not recommended for publication); case activity (including briefs)

Black’s first trial ended in a hung jury. When the state said it would try him again, he made a fuss–swearing and pounding on a table. At his second trial, Black again erupted (twice), was removed from the courtroom, and refused to return. His counsel requested a competency evaluation, which the court permitted, though with apparent reluctance. After the examiner found Black incompetent, the court disagreed with her, finding him competent and continuing the trial to (guilty) verdicts.

Iron County DHS v. N.H.-D., 2019AP1520, District 3, 2/12/20 (one-judge decision; ineligible for publication); case activity

N.H.-D.’s claims that the termination of her parental rights violated various due process rights, but those claims are forfeited and undeveloped. Her claim of ineffective assistance of trial counsel is meritless. 

State v. Carrie E. Counihan, 2020 WI 12, 2/13/20 modifying and affirming an unpublished court of appeals decision, 2017AP2265; case activity (including briefs)

This case is the companion to State v. Coffee, which, though argued on the same day, came out a few weeks earlier and failed, in particularly confusing fashion, to announce any binding rule. This case does make a rule:

We conclude that where previously unknown information is raised by the circuit court at the sentencing hearing, a defendant does not forfeit a direct challenge to the use of the information by failing to object at he sentencing hearing. Under the facts of this case, Counihan appropriately raised the alleged error in a postconviction motion.

(¶4).

Marathon County v. D.K., 2020 WI 8, 2/4/2020, affirming an unpublished court of appeals decision; 2017AP2217; (case activity)

The caption is the most confusing part of this opinion:

ZIEGLER, J., delivered the majority opinion of the Court with respect to Parts I., II., III., IV.A., IV.B., and IV.C.1, in which ROGGENSACK, C.J., REBECCA GRASSL BRADLEY, KELLY, and HAGEDORN, JJ., joined, the majority opinion of the Court with respect to Part V., in which ROGGENSACK, C.J., KELLY and HAGEDORN, JJ., joined, and an opinion with respect to Parts IV.C.2., and IV.D., in which ROGGENSACK, C.J., and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which KELLY, J., joined. DALLET, J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J., joined.

But it’s not as bad as it looks! And this decision makes (some) law: specifically, that an appeal of an original commitment is not moot where the commitment has the continuing effect of forbidding its subject to possess firearms.

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

State v. Michael S. Coleman, 2019AP1999-CR, District 4, 1/30/20 (one-judge decision; ineligible for publication); case activity (including briefs)

Coleman appealed the restitution ordered for the damage he did to a squad car by striking his head against the cage inside and kicking the door. (¶2). But his challenges are forfeited for failure to raise them in the circuit court.

State v. Donavinn D. Coffee, 2020 WI 1, 1/9/20, 2017AP2292, affirming a per curiam court of appeals opinion; case activity (including briefs)

Where to begin?

State v. Kody K. Johnson, 2019AP1058-CR, District 4, 1/9/19, (1-judge opinion, ineligible for publication); case activity (including briefs)

Johnson accepted a negotiated disposition of 3 contempt charges stemming from his interference with child custody. He then moved to withdraw his plea arguing that the charges had no factual basis and were multiplicitous.

State v. Robert James Pope, Jr., 2019 WI 106, affirming an unpublished court of appeals opinion; case activity (including briefs)

In the most absurd decision this term (still time for worse), SCOW has denied a defendant sentenced to life without parole both a direct appeal and a new trial because the court system destroyed all of his trial transcripts. The defendant “sat on his rights,” said the majority opinion, written by Justice Ziegler. When his lawyer failed to file a timely notice of intent to pursue postconviction relief, he should have immediately, without counsel, figured out how to defend his appeal rights and effectively defended them. He didn’t. No relief.